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<br />C!!')v;}1 <br />UI l). ". <br />variety of specific management options to be <br />used to implement the policy goals suggested by <br />the property rights themselves, This study, how, <br />ever, is limited to the narrow issue of property <br />rights, not the broader issues of management or <br />regulation, These broader management issues <br />were addressed in the Ground Water Reservoir <br />Management Report approved by the Com- <br />mission in January, 1982, Nevertheless, specifi' <br />cations of the groundwater property rights <br />system is one possible starting point for any <br />system of groundwater management. In areas <br />where public management systems are not <br />needed or at least not implemented, ground, <br />water property rights may be the only guide to <br />resolution of disputes between individual users, <br /> <br />ALTERNATIVE LEGISLATIVE POLICY <br />ACTIONS <br /> <br />Alternative #1: Make no changes in <br />present policy. <br />Alternative One anticipates no additional leg, <br />islative action specifically designed to define <br />the nature or extent of individual property rights <br />in groundwater, Present policies as described in <br />this report would remain intact. but would be <br />subject to later interpretations and refinements <br />by the courts, <br />It is not the intent of Alternative One to <br />prevent any additional legislation regarding the <br />use of groundwater, New policies relating to <br />public management of groundwater supplies or <br />to relationships between individual users of <br />groundwater could be enacted, Only alternatives <br />designed to directly define a groundwater <br />property right would be precluded by this altern' <br />ative, It should be recognized, however, that <br />action on other groundwater policies could in, <br />directly have as much impact on the nature and <br />extent of the groundwater property right as <br />enactment of anyone of the other twelve altern, <br />atives in this report. <br />AlternatiYe #2: Adoptthe English Rule of <br />Absolute Ownership as the definition of <br />groundwater property rights in <br />Nebraska. <br />Alternatiye #3: Adopt the American Ru Ie <br />of Reasonable Use as the definition of <br />groundwater property rights in <br />Nebraska. <br />AlternatiYe #4: Adopt the California Rule <br />of Correlative Rights as the definition of <br />groundwater property rights in <br />Nebraska. <br />Alternatives Two through Fou r represent the <br />three classical expressions of groundwater <br />property rights, the English Rule, the American <br /> <br />Rule, and the California Rule, Alternative Two is <br />a pure rule of capture, Landowners are free to <br />capture as much wateras they can and are free to <br />use it however they wish, wherever they wish, It <br />encourages a maximum rate of aquifer depletion <br />as landowners attempt to outcapture the'lr <br />neighbors, As a pure rule of capture, it is in' <br />compatible with any degree of regulation, To the <br />extent groundwater is subject to a public trust, <br />the English Rule also would be incompatible with <br />the state's fiduciary obligations under the trust. <br />Alternative Three also is a rule of capture but <br />landowners are limited to the amount of water <br />that they can put to reasonable and beneficial <br />use on overlying land that they own, As a practical <br />matter, the American Rule protects agricultural <br />users from the demands of municipal or other off- <br />land users, Absent additional regulation, how' <br />ever, the American Rule does little to slow the <br />rate of aquifer depletion, Alternative Four is a <br />modification of the American Rule, The American <br />Rule generally governs unless an overdraft <br />occurs, in which case landowners must share <br />available supplies by making proportional re' <br />duct ions in use, Excess waters over and above <br />the amount needed by overlying landowners are <br />available for appropriation, for use on distant <br />lands, In theory, the California Rule encourages <br />maximum use of average annual recharge while <br />limiting total withdrawals to the safe yield of the <br />aquifer, Groundwater is allocated among over, <br />lying landowners and distant users according to <br />complex rules, In practice, however, the major <br />impact of the California Rule has been to <br />determine who is required to pay for more <br />expensive imported water, <br />Alternative #5: Adopt a Rule of Reason- <br />able Use as developed in certain eastern <br />states as the definition of groundwater <br />property rights in Nebraska. <br />Alternatiye #6: Adopt the reasonable use <br />rules found in the RESTATEMENT <br />(SECOND) OF TORTS 9 858 as the defin- <br />ition of groundwater property rights in <br />Nebraska. <br />Alternatives Five and Six give landowners a <br />right to use as much groundwater as they can, <br />provided that their use is "reasonable" in reo <br />lation to the needs of other landowners. <br />Under Alternative Five, reasonableness is the <br />subject of a case'by'case judicial determination, <br />Under Alternative Six, reasonableness is de' <br />termined by reference to a list of enumerated <br />criteria, Both alternatives permit great flexibility <br />in reaching equitable solutions to groundwater <br />use conflicts but neither alternative gives the <br />landowner any certainty of right. <br />Alternative #7: Adopt a First User Rule as <br />the definition of groundwater property <br />rights in Nebraska. <br /> <br />VII <br />